May 28, 2009

If you have a regular income and, after paying off all of your necessary expenses, you have some money left over to pay down your debts, the court will “restructure” your debts over a 5 year payment plan with little or no interest. The major advantage of this type of bankruptcy is that you will be able to keep all of your assets and will not be forced to liquidate them to satisfy your debts.

100% of secured debt must be paid off or made current during this payment plan. This refers to debts which are secured by a specific piece of property like a car or home. With regard to these secured debts like a mortage, the payment plan will give you time to become current and avoid foreclosure. These overdue amounts must be fully paid at the end of the five year payment plan.

Non-secured debts, on the other hand, like hospital bills, credit card bills, lawsuit judgments and payday loans will only be paid back over the payment plan period according to how much you can afford to pay. When you complete the payment plan, most unpaid balances of these debts will be discharged by the bankruptcy court.

Over the course of the three to five year plan, you will make the ongoing agreed-upon payments to your creditors and they may not try to collect more than they are entitled to under your Chapter 13 payment plan. Once you complete all payments during the five year period, the court will grant you a “full discharge” of your outstanding balances.

However, as with Chapter 7 bankruptcy, the discharge will not absolve you of the obligation to pay certain non-secured debts like child or spousal support obligations, most student loans, and many tax obligations.

You may contact our office for a free consultation with an experienced bankruptcy attorney with regard to whether this or another type of bankruptcy may be appropriate for your situation.

May 27, 2009

In order to qualify for Chapter 7 Bankruptcy, you must pass the “means test.” That means that if your income is less than the median income in your county, you qualify to apply for bankruptcy protection. In order to find out if your income is above or below the median income for your area, please contact our office and one of our experienced bankruptcy attorneys can apprise you of where your income falls in the context of the “means test.” If, however, your income is above the median income for your county, you may still qualify, but additional information that you provide will have to be.

When one files for Chapter 7 bankruptcy, the court appoints a trustee who will collect and sell (“liquidate”) all non-exempt property and distribute the proceeds to the appropriate creditors. Any remaining dischargable debts will be discharged at the end of the process.

The definition of “exempt assets” varies from state to state, but in New York, the following assets are generally exempt from liquidation in Chapter 7 bankruptcy:

$2,500 in cash and $2,500 in clothing and household furniture, or $50,000 in equity in a home that is located in New York and is the principal residence of the debtor

a car with up to $2,400 in equity,

“qualified” retirement plans, such as 401ks and 403b plans,

IRAs

up to $600 in work tools

personal injury compensatory recoveries to up to$7,500 (not including pain and suffering)

security deposits

Any excess equity in your home or car, above the levels outlined above, must be “cashed out” in order to pay your creditors. It should be noted that certain debts are not dischargable in a bankruptcy proceeding. The following debts are among the most common that generally may not be discharged:

May 26, 2009

Basically, if you have few assets, do not have a regular income or you do not have enough income to meet your basic needs and have something left over to help pay down your debt, then Chapter 7 bankruptcy might make the most sense for you. It will allow you to start fresh as quickly as possible, with the possibility of receiving a discharge of your debt in as little as a few months.

If, however, you have a regular income and can meet you basic living expenses with a little bit left over every month, your goal may be to reorganize your debts to a manageable level in order to pay your way out of debt. In this case, Chapter 13 bankruptcy would probably be the right choice.

In a Chapter 7 bankruptcy, all of your non-exempt property would be sold (“liquidated”), and the proceeds of the sale would be used to pay off a portion of your debts. If you have few assets, this type of bankruptcy may be the best option. For more information on which assets are considered exempt from sale in a bankruptcy proceeding, see the page on Chapter 7 bankruptcy.

If, on the other hand, you have a lot of non-exempt assets, such as a house, or you have regular income, you may have more to lose by having your assets liquidated to satisfy your debts, or a portion of your debts, than you would by creating a payment plan to pay off your debts over several years. In that case, you should probably consider filing for bankruptcy under Chapter 13.

May 22, 2009

Generally, if you do not have enough money to pay your other debts after you pay the bills for your necessary expenses each month, you may file for bankruptcy.

Most people who file for bankruptcy are either unemployed, have large medical expenses, have seriously over extended credit, or encounter large unexpected expenses.

In order to qualify for bankruptcy protection, there are several primary prerequisites:

· You must either live, have a place of business, or own property in the United States

· You must not have been granted a Chapter 7 bankruptcy discharge within the last eight (8) years, or, if you have received relief under Chapter 13 of the bankruptcy code, you must have completed your Chapter 13 payment plan.

· You cannot have had a bankruptcy petition dismissed for substantive reasons within the last six months.

· It cannot be “fundamentally unfair” for you to receive relief under Chapter 7 of the bankruptcy code.

After you have filed for bankruptcy, your creditors may no longer contact you. The court will notify all of the creditors listed in your bankruptcy filing that you have filed for bankruptcy. Once they receive notice from the court, usually a couple of weeks after filing, they must stop all collection efforts and you should then be free from collection calls or any other type of collection efforts. If, despite notice of your bankruptcy proceeding, your creditors continue to contact you, they may be liable for court sanctions or your attorney’s fees.

If you are drowning in debt and you feel that you are unable to pay your way out on your own, we can help you make a new start by filing for bankruptcy. Read this article to help you decide which type of bankruptcy is appropriate for your situation.

May 21, 2009

You may view the video above to get information about Mr. Schlissel’s matrimonial practice in the Five Boroughs of New York City, Nassau and Suffolk counites. Our office has been representing matrimonial clients in New York clients for over 30 years. You can get additional information from our matrimonial law site and by contacting our office.

May 20, 2009

Our office has a significant personal injury practice in New York. Watch the video above for more information about Mr. Schlissel’s aggressive handling of personal injury matters. And as always, please contact our office if you need representation because of injuries that you have sustained.

May 11, 2009

Right now, it depends which part of New York you live in. In Westchester and Albany, the police do not need a warrant to place a GPS tracking device on your car, but in Nassau County they do.

On March 24th, the New York Court of Appeals heard oral arguments (video here) in the case of People v. Weaver, which will probably lay out a uniform rule for all of New York State (the Supreme Court of the United States has not yet ruled on the matter). In that case, the Defendant is appealing of the affirmation of his conviction by the Appellate Division, 3rd Dept. People v. Weaver, 52 A.D.3d 138 (3d Dept. 2008).

In this case, Albany police secretly placed a GPS tracking device on the Defendant’s car to track his movements without acquiring a search warrant beforehand. The issue in the case is whether tracking someone with a GPS device constitutes a “search.” If it does, then the police must either get a warrant first or justify their decision not to obtain a warrant under one of the established warrant requirement exceptions. If it is not a search, then the Fourth Amendment would not be implicated at all and no warrant would be required.

The trial court and the Appellate Division reasoned that placing the GPS tracking device on the car was not constitute a search and thus did not require a warrant because the police were not learning anything from the tracking device that they could not have learned by simply following the car. The courts held that since anyone can follow any car on the road, individuals do not have a “reasonable expectation of privacy” that the location of their cars on the roads will remain a secret.

During the oral arguments in the Weaver case, Chief Judge Lippman asked the attorney for the government whether he would see any constitutional problem if the police decided to work with car dealerships to install GPS tracking devices on everyone’s car to watch their every vehicular movement. He elicited an admission by the government lawyer that his position was that such a practice would not offend individuals’ “reasonable expectation of privacy” under either the New York or U.S. Constitutions.

My legal e-pen pal, James Maloney, Esq., alerted me to this case and recently watched oral arguments as well, and predicted that the new Chief Judge Jonathan Lippman will pen a majority opinion finding that surreptitiously installing a GPS tracking device on a car does constitute a search and would ordinarily require a warrant absent some kind of exigent circumstances (emergency). Or, even if he does not write a majority opinion, that he would write a strong dissent arguing that placing a GPS tracking device on a car does constitute a search.

In this case, the danger of a limitless right by the police to track individuals’ every movement justifies a constitutional requirement that they obtain a warrant before doing so in order to avoid abuses.

As always, if you need criminal defense help or feel that you are being investigated by the police for a crime, you are invited to contact our office.

Update 5/12/09: I posted one day too early. I have not gotten to read the case yet, but apparantly the Court of Appeals just issued their decision in this case, finding that the New York Constitution does indeed prohibit warantless placement of GPS tracking devices without a showing of Exigent Circumstances by police. LINK.

About Us

Established in 1978, The Law Office of Elliot S. Schlissel is a multi-service firm committed to client-focused, cost-effective legal services in the Five Boroughs of New York City, Nassau and Suffolk Counties. Our office services clients in the areas of Family, Criminal, Real Estate, Personal Injury, Elder Law, Bankruptcy, and Wills, Trusts and Estates.Mr. Schlissel graduated from SUNY Oswego in 1972 and attended the Hofstra and Buffalo law schools. He has been practicing matrimonial, personal injury, Bankruptcy, Wills, Trusts, & Estates, criminal defense, family law, elder law/Medicaid Planning, and general litigation for over 32 years. To reach Mr. Schlissel, or one of the other skilled attorneys at the firm, CLICK HERE.